[CWG-Stewardship] Comments on IANA Transition Flow Chart

[Guru Acharya]

In-line comments

On Sat, Nov 22, 2014 at 10:55 PM, Milton L Mueller <mueller at syr.edu> wrote:

>
>
> 1, Who or what is the IANA contracting entity? Is it inside ICANN or
> outside of ICANN? (Hint: it had better be outside if this idea is to
> conform to the principles of separability and accountability.) How is it
> governed?
>
>
The contracting entity will be a separate legal entity outside ICANN.

>
>
> 2. Who is the “periodic review team”? Is it inside ICANN or outside of
> ICANN? How is it formed? Why is it different from the contracting
> authority; i.e., what is its legal or organizational relationship to the
> contracting authority?
>
>
>
The objective is to keep the new contracting entity as boring/unattractive
as possible in order to avoid the creation of a new entity having the same
growth dynamics as ICANN. The only purpose of the contracting entity is to
hold the contract. The actual substantive determination for anything
related to the contract will be delegated to the 'periodic review team'.
The periodic review team is being envisioned as something that is free
floating. It is supposed to be neither in ICANN nor in the new contracting
entity. The new contracting entity will be delegating the contracting
function to the periodic review team through its bylaws and the contract
terms and conditions.


>  3. I understand ‘performance review’ to be a fairly narrow assessment of
> how well the IANA performs its specified technical functions. If so, why is
> there a distinction between a “customer standing committee” and the
> “periodic review team”? While I can understand why, e.g., a civil society
> advocate might be extremely interested in whether IANA is not implementing
> policies that were passed, or implementing policies that were not accepted
> (these are accountability issues, not performance issues). But I do not
> understand what role a digital rights advocate or an intellectual property
> lawyer would play, say, in assessing the accuracy and security of a TLD
> operator’s root zone file modifications or interactions with the IANA.
>
>
>

Note that the 'periodic review team' is also responsible for the
contracting functions in addition to overall/higher-level performance
review of IANA. I hope you at least agree that the contracting function
(issuing a new contract, terminating an existing contract etc) will require
a multi-stakeholder composition. The periodic review team is not supposed
to be responsible for day-to-day review which is of a operational/technical
nature.



>  4. Accountability and true separability (both of which are recognized
> principles of this group) requires a periodic renewal of the contract in
> which there is no “presumption of renewal” and a willingness to entertain
> other providers of the functions. Periodicity minimizes the friction
> associated with reviews and with moving the contract by clarifying
> expectations well in advance. Periodicity is NOT inimical to continuity or
> to long-term investment by a well-behaved provider that satisfies its
> customers. The flow chart seems to contain a much weaker – and to me,
> unacceptable – concept of a “periodic review team” which is merely there to
> advise the incumbent contractor on how to improve service, just as the
> current ATRT merely advises ICANN on how to improve. Let me flag this as a
> deal-breaking issue for me and, I think, many others. If you want consensus
> this will have to be significantly changed.
>
>
>

'Period review team' can not only review, but also pull the plug on the
contract in response to the review. As of now, the decision of determining
the nature of the contract has been left to the 'periodic review team'.
They will later determine the duration of the contract, whether there will
be a presumption of renewal etc.

There was also a concerted effort at the Frankfurt meeting to have the term
"RFP" removed from the flow chart for explaining the contracting process.

While I quite like the rest of the proposal, I agree with you that this
aspect needs to be changed significantly in line with what you are
suggesting. There needs to be (i) a limited term for the contract; (ii) an
open beauty contest; and (iii) no presumption of renewal.

If determining the nature of the contract is left entirely to the periodic
review team, then I fear that this team might give the contract to ICANN in
perpetuity given that the periodic review team is essentially derived from
ICANN structures (SO/AC). I see a conflict of interest in this.
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